EU visa ban in Magnitsky’s case – finally?

Sergei Magnitsky, Russian anti-corruption lawyer, died in a Moscow detention centre on 19 November 2009. Before he was arrested, Mr Magnitsky worked for Hermitage Capital, an international investment fund. The company was conflicted with Russian authorities as it defended the interests of minority shareholders of the country’s leading corporations such as Gazprom oil and gas company.

Magnitsky had been detained and charged with financial fraud. As a number of facts suggest, the lawyer’s death in detention have been caused by the prison authorities’ failure to provide him with proper medical assistance after he was beaten by prison officers. Officially, the cause of death of the 37-year old attorney was “circulatory failure”.

The official probe launched into Magnitsky’s death has been heavily obstructed and failed to bring any explanation. In the aftermath, the US imposed a visa ban on 18 Russian officials and law enforcement officers implicated in the lawyer’s death. On their part, Russian authorities responded by prohibiting adoption of Russian orphan children by US citizens. What is more, the Russian government has decided to carry on with criminal proceedings against Mr Magnitsky even after his death.

However, this was impossible due to a provision of the country’s Criminal Procedure Code which read that criminal proceedings must be discontinued in the event of the suspect’s or defendant’s death. Yet, in Russia nothing is impossible. The country’s Constitutional Court ruled the Code was unconstitutional, holding that criminal proceedings pending against a suspect or a defendant who died after the case was instituted may be discontinued only with the consent of their family. Magnitsky’s mother, Natalya, has filed the relevant application but her submission was denied on the grounds that the woman “had no proper legal standing in the case”. In other words, a mother is not a family member.

Sergei Magnitsky was tried posthumously and found guilty in a judgment made on 11 July 2013 by a Tver court. His business associate, UK citizen William Browder, was sentenced in absentia to nine years in prison.

After Mr Magnitsky’s lawyers refused to take part in the trial the court appointed public defenders, who have not even considered appealing against the ruling.

On 23 October 2012 the European Parliament issued the recommendation to the Council of the European Union on establishing visa restrictions for Russian officials involved in the Sergei Magnitsky case. Unfortunately, the Council (acting as the Council of Foreign Affairs) has failed to respond to the recommendation in any way whatsoever.

Last week, the European Parliament’s Committee on Foreign Affairs decided to send to the EP the draft of a new recommendation to the Council of the European Union. The document names 32 individuals who should receive a visa ban. The draft is to be voted on by the European Parliament in early April.

I hope that after the draft is adopted by the EP, the Council of the European Union will change its approach and take a swift action. Such an action is needed not only because the events in and around Ukraine have created a favourable climate for the common European response. It is required due to the violations of basic human rights and principles of a democratic state ruled by law which cannot be tolerated by Europe.

The commentary has been prepared by Professor Ireneusz C. Kamiński, legal expert of the Helsinki Foundation for Human Rights, a fellow of the Institute of Law Studies of the Polish Academy of Sciences.